Seeing the Round Corners

April 4, 2016 JUST THE COST OF DOING BUSINESS - UPDATE

Already four years have past since the original column appeared. Probably to the surprise of no one, the corporate world's way of doing business has not changed and corporate responsibility is not in their lexicon except in those showy brochures for investors.

In 1989, the Exxon Valdez tanker spilled 11 million gallons of oil after running aground in Prudhoe Bay. Until the BP 2010 Deepwater Horizon in the Gulf of Mexico, the spill was the largest in recorded history.

In the "never learn department," Exxon is now back in the limelight, or "gun sights" of various attorneys general over statements made by Exxon Mobil (formerly just Exxon) to investors about climate risks that "conflicted with the company's own scientific research." Also under scrutiny is funding provided by Exxon Mobil to outside groups working to dispute climate science. Attorneys for Exxon Mobil are trying the free speech escape route for its actions. New York's attorney general, Eric T. Schneiderman, warned that the First Amendment does not give anyone the right to commit fraud.

Here are just s few of the cases of corporate fraud readers may want to remember for future investment decisions or joint replacements.

acceleration due to gas pedal problems. A former managing counsel for Toyota's U.S.-based product liability

group, Dimitrios Biller, was paid $3.7 million and agreed to resign in a wrongful discharge claim after he

suffered a complete physical and mental breakdown from harassment by Toyota.

Corporate welfare gets aide and abetting from Colorado's legislature when it gives corporations the green light by passing legislation authorizing "public-private partnerships." As an example of such legislative deals is when a developer collects sales-tax money and then spends that money to build roads, sewers and so on.

Giving a corporation such authority clearly allows a developer to levy taxes which is a clear violation of the

Colorado Constitution. The shopping center on Kipling just north of I-70, anchored by a Target Super Center,

is a prime example of corporate welfare. When the shopping center opened, an additional 3-1/2 percent tax was clearly shown on every sales receipt generated at stores. More on corporate welfare in a future column.

Now for a column from this writer's archives which, when coupled with today's information, goes a long ways in showing just how things never seem to change in the corporate world. JUST THE COST OF DOING BUSINESS (December 10, 2012)

Far too often, not asking the right question gets you the answer you want. In early April of 2010, a mine known as the Upper Big Branch (UBB) run by Massey Energy exploded killing 29 miners.

As investigators descended on the site and the investigation got under way, the operating history of Massey Energy at the UBB surfaced with violations in the thousands. Many of those citations were for failing

to install ventilation equipment to remove methane gas from the mine – methane gas was blamed from the

get-go for causing the explosion.

Massey Energy's Chief Executive Office, Don Blankenship, "advertised" his lack of regard for human life when he made this admission in a radio interview only days after the UBB explosion: "Violations, you know, unfortunately, are a normal part of the mining process. There are violations at every coal mine in America, and UBB was a mine that had violations." Mountaintop removal was also believed to be connected to the explosion – a process that wreaks massive environmental damage, but provides fast, easy access to seams of coal. Point-of-information: This callous statement was made by a man whose estimated annual salary is $19.7 million (reportedly the highest in the coal industry).

Massey/Blankenship's focus on the importance of extracting coal over human life was further emphasized in documents produced in litigation: "If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e., build overcasts, do construction jobs, or whatever) you need to ignore them and run coal. This memo is necessary only because we seem not to understand that the coal pays the bills."

U.S. and foreign corporations demonstrate over and over what mega bucks they are willing to pay as the "cost of doing business."While banks do not put lives at risk at the level Massey Energy regularly does, fines for improper and downright illegal/criminal activities are, as a rule, a drop in the bucket compared to the mega profits earned.

Fines for such activities have come to be looked on as just part of the "cost of doing business." Examples of such fines:

• Morgan Stanley: Fined $4.8 million on the $21.6 million profit earned by rigging wholesale electricity

prices through complicated derivative swaps in the state of New York. Banks fined for mortgage servicing activities and infamous robo-signing of unread foreclosure documents:

Bank of America: Fined $175.5 million;

Citibank: Fined $22 million;

JP Morgan Chase: Fined $275 million;

Wells Fargo: Fined $87 million; and

Ally Bank: Fined $207 million.

Foreign banks doing business in the U.S. are equally blatant in violations. In August of this year, London's Standard Chartered Bank (SCB) agreed to pay a fine of $340 million to the New York State Department of Financial Services. The crime: money laundering activity in connection with the Government of Iran, hiding from regulators"roughly 60,000 secret transactions involving at least $250 billion, and reaping SCB hundreds of millions of dollars in fees. SCB's actions left the U.S. financial system vulnerable to terrorists, weapons dealers, drug kingpins and corrupt regimes, and deprived law enforcement investigators of crucial information used to track all manner of criminal activity."

What's a few hundred million in fines when there's $250 billion "under the table" at stake?

There are two significant points demonstrative of the magnitude of the case against SCB. First, SCB agreed to pay the fine only 8 days after the charges were filed which beat the deadline when criminal activity was to be discussed by the New York Department of Financial Services (DFS) with the bank. Noteworthy is what this meant – it enabled SCB to sweep the ugly details and magnitude of its actions under the rug and avoid the bad publicity a public trial would have brought. Just another cost of doing business, and as yet to be confirmed, no doubt a deduction on the good old corporate tax return if indeed the bank even pays U.S. taxes.

Second, the additional aspect of the settlement agreement: SCB was required to "install a monitor for a term of at least two years who will report directly to DFS and who will evaluate the money-laundering risk controls in the New York Branch and implementation of appropriate corrective measures. In addition, DFS examiners shall be placed on site at the Bank."

"The Bank shall permanently install personnel within its New York branch to oversee and audit any offshore money-laundering due diligence and monitoring undertaken by the Bank."

As lack of corporate responsibility and ethics by U.S. and foreign corporations escalates, it seems regulators would wake up to the obvious: slap-on-the-wrist fines are looked on as simply the cost of doing business, and do not serve as deterrents to outright criminal conduct. Has anyone ever considered raising the ante, say whatever the amount gained from illegal/criminal acts becomes the amount of the fine AUTOMATICALLY?

Of course, to impose such penalties, banking regulations would be subject to real reform which can't seem to get past (or passed) by that Washington crowd, also known as Congress.